Tag: board investigation

Caution: Do not represent yourself before your licensing Board

I have written about this subject before, but the situation keeps reoccurring, and the “lesson” keeps repeating itself, so I will repeat myself: Do not represent yourself when you are under investigation by your licensing Board. Here are three recent examples of what can go wrong:

Example #1 – A pharmacist before the Oregon Board of Pharmacy

The first case involves an investigation by the Oregon Board of Pharmacy. In this case, the pharmacist met the standard of care expected of a pharmacist when presented with a suspect prescription. Unfortunately, the pharmacist was so focused on mistakes made by others that he (1) declined to provide the Board with a written statement and (2) appeared for his recorded interview prepared to talk about the mistakes of others, and little else. The recorded interview went poorly, and the Board of Pharmacy issued a Notice of Proposed Disciplinary Action, threatening significant discipline, including probation and loss of pharmacist-in-charge (PIC). The pharmacist hired me soon thereafter. After completing my review, I find that the pharmacist had a near-perfect defense but, without the benefit of experienced legal advice, he failed to present that defense when it mattered most.

Example #2 – A physician before the Oregon Medical Board

The second case involves an investigation by the Oregon Medical Board. In response to the Board’s request, the physician submitted a written statement that was too short given the subject matter of the Board’s concerns. The physician also appeared for her recorded interview before the Investigative Committee (IC) without adequate preparations. The physician hired me after the Board requested that she consent to (1) an Interim Stipulated Order (ISO) significantly restricting her practice, and (2), an Order for Evaluation subjecting her to an expensive, out-of-state assessment, of her ability to practice medicine. Although the Board’s requests may reflect poorly on the physician, with the benefit of my experience, I do not see the Board’s action as an accurate assessment of the situation, because I know the physician was unrepresented by legal counsel, and under prepared when it mattered most, i.e., when she submitted her written statement and when she attended her IC interview.

Example #3 – A nurse before the Oregon State Board of Nursing

The third case involves an investigation by the Oregon State Board of Nursing (OSBN). In this case, the Board of Nursing made several offers to settle the case but, without the benefit of experienced legal counsel, the nurse failed to appreciate that the Board’s settlement attempts were offered in an effort to avoid discipline. After several failed attempts to reach a compromise, the Board lost patience and voted to discipline the nurse, at which point, the nurse hired me. Even the simplest of cases can become difficult when the parties are polarized against one another.

The lesson: Do not represent yourself before your licensing Board

The three cases summarized above, involve three different licensing Boards, and three different situations where things went poorly for the licensee. In the first and second cases, the licensing Board sought serious discipline, and in the third case, the licensing Board sought minor discipline. The first case should have been easily defended and the third case should have been easily settled, while the second case needed to be developed and defended. All three cases, however, have one thing in common: The licensee mistakenly decided to proceed alone, without legal representation and, in each case, the licensee came to regret that decision. Do not make this mistake. If you are a licensed healthcare provider facing an investigation by your licensing Board, I urge you to seek legal counsel from an experienced healthcare defense attorney at the first opportunity.

Common mistakes licensees make when communicating with their licensing Boards – Part II

Last week, I explained that if you are under investigation, the record you are creating is a public record, and it will serve as the record should your case proceed to a contested case hearing. This is why the communications you receive from your investigator are formal, cogent, and professional. Similarly, your lawyer’s communications, sent on your behalf, should be coordinated, thoughtful, and legally strategic. In the most difficult of cases, this approach is absolutely necessary to succeed, and in the easiest cases, this approach is still necessary to prevent mistakes. Here are a few examples of real mistakes made by licensees when unrepresented by legal counsel.

Example #1 – Gloria

“Gloria,” a physician, was practicing under a restricted license, and she sought to have many of her restrictions lifted or modified. She sent frequent one or two sentence emails to her investigator, asking questions, often using her smart phone, which added the line, “sent from my smart phone.” Gloria would often send follow up emails without allowing the investigator adequate time to answer her first email. Other times, Gloria would fax material to the Board’s investigator, using only a facsimile cover page and the investigator’s name, without any explanation. All of Gloria’s communications would eventually make it into her file, but those communication were too frequent, too casual, and unprofessional. Gloria also appeared to have a “tin ear” for the investigators requests and concerns. She wanted relief from the Board, but she was not providing what the Board wanted from her. Not surprisingly, both Gloria and her investigator were frustrated, neither one able to understand the priorities of the other, bringing forward progress to a standstill.

Example #2 – Sam

“Sam,” a physician, did his own research, and would occasionally find literature helpful to his case. Sam would attach such articles to an email and send it off to the Board’s investigator, without much explanation, but intending to prove that he was meeting the applicable standard of care. In one unfortunate case, Sam found an article with a seemingly helpful introductory summary, and he sent it to the Board. A thorough reading of the article, however, suggested that Sam’s practice protocols did not meet the exacting standards required by the authors of the article, something Sam did not learn until he was harshly examined during his interview. Despite the time Sam put into his preparations, he never generated, much less provided, a single, cohesive, persuasive explanation of his standard of care.

Lessons to be learned

Perhaps half of Gloria’s communications were unnecessary, if not irritating, to the investigator, and the other half should have been consolidated into a few thoughtful, timely, and responsive communications, that would have placed Gloria in a professional light. More importantly, before Gloria could be in a good position to request relief from the Board, she needed to understand and comply with the Board’s requests. Once these mistakes were corrected, forward progress was immediate, and Gloria got the relief she sought.

Sam had the right idea, because he needed to establish that he was meeting the applicable standard of care. Sam’s approach, however, set Sam up for a big loss. Sam acted hastily. Sam’s defense was not persuasive, and, at times, harmful to him. Sam’s various communications should have been consolidated into one or two timely communications, complete with thoughtful analysis, including end notes, a bibliography, and enclosures of the most helpful articles. Inconsistent authority should have been distinguished. Using this approach, Sam’s mistakes would have been avoided, and the art of persuasion honored. Needless to say, the type of mistakes Sam made are not easy to correct.

Mistakes are often easier to prevent that to correct

Overall, Gloria and Sam both communicated too freely, too casually, and too often with their licensing Boards. Gloria and Sam’s mistakes would have been prevented by experienced legal counsel. Experienced legal counsel will communicate less often, but more thoroughly and persuasively on your behalf.